THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail No.S-101 of 2023

Applicant:             Zahoor Ahmed son of Ghulam ShabirKhoso through Makhdoom Syed Tahir Abbas Shah, advocate.

Respondent:         The State

Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.

Date of hearing:    27.04.2023

Date of Order:       27.04.2023

O R D E R

ZULFIQUAR ALI SANGI, J.-Through instant Criminal Bail Application, applicant/accusedZahoor Ahmed seekspost arrest bail in Crime No. 38/2022, offenceunder Sections 302, 324, 337-A(i)(iii), 337-F(i), 147 & 148 P.P.C.registered at Police StationQubo Saeed Khan. Prior to this, he filed such application, but the same was dismissed by the Court of Additional Sessions Judge-I, Shahdadkot vide order dated 27.02.2023.

2.                 The facts of the F.I.R. are mentioned in the bail application copy whereof is also attached with the memo of bail application, hence, need not to reproduce the same here.

3.                Learned counsel submits thatthe applicantis innocent and he has been falsely implicated by the complainant with ulterior motives; that the F.I.R. is delayed for one dayand no plausible explanation has been furnished by the complainant; that the co-accused having same set of allegations have been granted bail by the learned Trial Court; that the present applicant has been attributed role of causing injury to P.W Ali Murad; that the applicant accused is juvenile and first offender. Lastly, learned counsel prayed that applicant/accused may be bail granted bail.

4.                Learned D.P.G. has raised objection to the grant of bail to the applicant/accused by stating that applicant accused is nominated in the F.I.R. with specific role of causing injury to the injured person; that in the incident one person had lost his precious life and other P.Ws sustained injuries at the hands of the accused persons; that the co-accused who had been earlier granted bail by the trial Court have different set of allegations, hence the present applicant/accused is not entitled to the concession of bail.

5.                 Heard arguments of the learned counsel for the parties and have perused the material available on record with their able assistance.

6.       It is settled law that at the bail stage, the Court has to tentatively form an opinion by assessing the evidence available on record without going into merits of the case. The deeper appreciation of the evidence cannot be gone into and it is only to be seen whether the accused is prima facie connected with the commission of offence or not. In order to ascertain whether reasonable grounds exist or not the Courts not only have to look at the material placed before it by the prosecution, but have to see whether some tangible evidence is available against the accused or not to infer guilt. An essential prerequisite for grant of bail by virtue of sub-Section 2 of Section 497 is that the Court must be satisfied on the basis of opinion expressed by the Police or the material placed before it that there are reasonable grounds to believe that the accused is not guilty of an offence punishable with death or imprisonment for life or imprisonment of 10 years. The mere possibility of further inquiry exists almost in every criminal case. The Court is required to consider overwhelming evidence on record to connect the accused with the commission of offence and if the answer is in the affirmative he is not entitled to grant of bail as has been held by the Supreme Court of Pakistan in the case of Bakhti Rahman v. The State and another (CRIMINAL PETITION NO.207 OF 2023) vide order dated:15-03-2023.

7.       In the case in hand allegations against the applicant are that he caused Iron rod blows to the injured Ali Murad who was examined by the doctor and after examination medical certificate was issued,which is supportive to the allegations leveled against the applicant.  The version of the complainant is further supported by the witnesses in their statements under section 161 Cr.P.C. including the injured witnesses.As per the hulia form the applicant is stated to be aged about 19/20 years, therefore the question of age is to be decided by the trial court if the applicant filed an application for determination of his age. In the incident one person has lost his life and others received injuries which offence is punishable for death, life or imprisonment of 10 years and the same fall within the prohibitory clause of section 497 of the Criminal Code of Procedure, 1898 wherein it is clearly provided that a person shall not be released on bail if there appears to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment of 10 years. Further, the delay if any in registration of FIR is occurred the same has been explained by the complainant and in the cases where someone received serious injuries the priority is to save the life of that injured first, which is done in the present case. The law is settled that the delay in lodgment of FIR is not proved fatal in all the cases as it never washes away nor torpedoes trustworthy and reliable ocular and circumstantial evidence, as has been held by the Supreme Court of Pakistan in cases of ZarBahadar v. The State (1978 SCMR 136) and Sheraz Asghar v.The State (1995 SCMR 1365).

8.       As regards to the rule of consistency or parity for considering the grant of bail to the applicant is concerned, the FIR and the bailgrantingorder of the co-accused is perused and it is found that the roles of the co-accused who were granted bail by the trial court are distinguishable to the role assigned to the present applicant who caused fatal injury to the injured Ali Murad. The doctrine of parity or rule of consistency in a criminal case elucidates that if the case of the accused is analogous in all respects to that of the co-accused then the benefit or advantage extended to one accused should also be extended to the co-accused on the philosophy that the “like cases should be treated alike”. The concept of equal justice requires the appropriate comparability of roles and overt act attributed to the co-offenders, but in case of difference or disparity in the roles due allowance cannot be extended to the co-offenders on the perspicacity that different sentences may reflect different degrees of culpability and or different circumstances.

 9.      In view of what has been discussed above, the bail application of the applicant Zahoor Ahmed Khosois dismissed. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of either party at trial.

                                      J U D G E